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Frank I. Michelman, Justice, Justification and Constitutional Fate in South Africa, 15 Constitutional Court Review 1 (2025).


Abstract: Where a country maintains a higher-legal (‘constitutional’) script of institutional forms, procedures and directives for the state’s exercise of lawmaking powers, we may demand or expect of that script that it be designed and applied with an overriding view to securing conditions of humanity, dignity and freedom for all the people of the country. The constitutional directives may, accordingly, include guarantees respecting named basic interests and needs of the people. Looking here into appraisals in South Africa of that country’s subsisting Constitution (and judicial applications of it), I find debates extending to a question of what sort of work a higher-legal constitution should anyway be doing in that country. As a nation-state among nation-states, South Africa today presents the aspect of a regime of civil government, authorised and responsible to oversee by law the ordering and conduct of affairs across its bounded territory. We tend to assume that any such nation-scale regime of government by law will have to rest on its population’s convergence on a script of procedures and directives for the state’s exercise of lawmaking powers: a constitution. This constitutional-existential assumption might not necessarily hold at every moment for every country. Here I advance it provisionally, with a view to charting implications from it that for some readers may bolster doubts — or dampen hopes — that the constitutional-existential proposition is fully fit to the South African case. Impending upon such doubts or hopes is a widely held sense of a collision here of culturally entrenched predispositions — ‘African,’ say, with ‘Western’ — towards conceptions of being-in-the-world and persons-in-society. I ask here about the resulting prospects for South African constitutionalism. I do so partly with a view to tempering intuitions about how to judge the doings of the Constitution’s drafters and its first-generation judicial custodians.